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Explore visasEB-1CCommon RFE topics

Money

Ability to pay

Whether the U.S. employer can pay the offered salary from the priority date until the green card.

What USCIS is questioning

  • Whether the employer paid the offered wage, or had enough net income or net current assets to cover it, for each year from the priority date.[1]
  • Whether the required documents for the employer itself were submitted: annual reports, federal tax returns or audited financial statements.[2]

The legal standard

  • 8 CFR 204.5(g)(2): a petition that requires a job offer must show ability to pay the proffered wage from the priority date until permanent residence, with annual reports, federal tax returns or audited financial statements; an employer with 100 or more workers may use a financial officer's statement.[2]
  • The Policy Manual looks first at wages actually paid to the beneficiary, then at net income or net current assets (not added together), and can weigh other factors in the totality of the circumstances.[1]
  • USCIS generally doesn't count the resources of a parent company, shareholders or LLC members, who have no legal obligation to pay the wage.[1]

How the request usually reads

  • Interpretation RFEs usually say the tax returns show net income and net current assets below the offered wage, and ask for documents in the regulatory form plus W-2s or payroll showing what the beneficiary was paid.[1,3]
  • Interpretation They may note that unaudited profit-and-loss statements don't meet the regulation on their own.[1,3]

Evidence petitioners often provide

  • Complete federal tax returns with all schedules for each year from the priority date.[1]
  • Forms W-2 or state wage reports showing wages paid to the beneficiary.[1]
  • Audited financial statements with the auditor's report, or annual reports containing audited figures.[1]
  • For an employer with 100 or more workers, a detailed statement from the petitioner's own financial officer.[1,2]

Where responses go wrong

  • High confidence Submitting a business plan, bank statements of the parent's investment or a state LLC annual report as the main proof; these aren't the documents the regulation requires.[1,4]
  • High confidence A financial officer's letter from an employer with fewer than 100 workers, or one signed by someone who isn't the petitioner's financial officer.[2,4]
  • Forgetting that the obligation continues until permanent residence, not just the filing year.[2]

AAO decisions on this issue

This information is for general informational purposes and is not legal advice. It does not create an attorney-client relationship and does not predict the outcome of any individual case.

Sources

  1. 1.USCIS Policy Manual, Volume 6, Part E, Chapter 4 — Ability to PayUSCIS · USCIS Policy Manual · Checked Sep 27, 2026
  2. 2.8 CFR 204.5 - Petitions for employment-based immigrantseCFR (Office of the Federal Register) · Regulation · Checked Sep 27, 2026
  3. 3.AAO non-precedent decision, Form I-140 multinational manager or executive, In Re: 39069229 (July 16, 2025)USCIS Administrative Appeals Office · AAO decision · Published Jul 16, 2025 · Checked Sep 27, 2026
  4. 4.AAO non-precedent decision, Form I-140 multinational manager or executive, In Re: 34887026 (June 16, 2025)USCIS Administrative Appeals Office · AAO decision · Published Jun 16, 2025 · Checked Sep 27, 2026